Thursday, February 12, 2009

Forcing His Hand or Providing Political Cover? Congressional Democrats Introduce Legislation on "State Secrets"

Glenn Greenwald has been providing extensive coverage of the debate surrounding Obama's recent assertion of the "state secrets privilege." The privilege shields from disclosure information or testimony related to national security. Several courts have broadly applied the privilege and have dismissed anti-torture and other civil liberties-related lawsuits that challenge various aspects of Bush's "war on terror." Many liberals contend that Bush used the privilege to create a wall of secrecy to hide torture and other deprivations of human dignity.

During his presidential campaign, Obama pledged to abandon Bush's approach to governmental secrecy and to create more transparency within the Executive Branch. According to some liberals, however, he "failed" his first test on this issue when he recently invoked the privilege to defend the dismissal of an anti-torture case. Bush successfully asserted the privilege in the same case, which is now on appeal, in order to secure dismissal.

Congressional Democrats Introduce Legislation Concerning Use of State Secrets Privilege
Obama's decision to invoke the privilege has generated criticism among civil liberties advocates. Now, members of Congress have added their voice to the situation. Yesterday, Pat Leahy and Arlen Spector reintroduced the State Secrets Protection Act of 2008, which Hillary Clinton and other senators introduced last year. Several House Democrats have introduced a similar measure.

The proposed law would require courts to evaluate each individual item of evidence in order to determine whether any of the materials contain sensitive information. Several courts have broadly recognized the privilege and dismissed cases without conducting an item-by-item review of materials which, absent the privilege, the government would normally have to disclose.

Although the proposed legislation would not prevent courts from dismissing cases based on the privilege -- particularly if they broadly defer to the government on the issue of national security -- adherence to the item-specific approach would provide greater transparency. In addition, another provision which would require courts to consider the possibility of a "non-privileged" alternative (such as a stipulation of facts, redacted submissions, etc.) could potentially mitigate against dismissals based solely on recognition of the privilege. The government, however, could simply deny the feasibility of creating a workable alternative to the desired materials without revealing sensitive information.

Politics and Law: Could the Proposed Legislation Provide Political Cover for Obama While Advancing the Interests of Congressional Liberals?
The Obama administration has stated that it is conducting a review of cases that implicate the state secrets privilege. But while assertion of the privilege angers liberal activists, DOJ lawyers -- who must engage in "zealous advocacy" on behalf of the government -- predictably decided to "stay the course" when they had to pick a strategy to argue an actual case. Perhaps the movement on this issue by members of Congress (prior to the completion of DOJ review) demonstrates that they predict this "smart" legal strategy will ultimately outweigh political considerations.

Liberals in Congress, however, might also favor the law in order to provide Obama with political "cover" and to advance their own interests. The proposed measure would either require Obama to follow a path that he personally desires but which his staff and political moderates and conservatives disfavor -- or which he disfavors, but which a well organized and influential part of the Democratic party supports. The measure would also allow liberals in Congress to notch a victory on an issue that civil libertarians favor -- and which created an immense amount of controversy during the Bush administration.

Neither Obama nor Senate Democrats, however, probably want to engage in highly public battle over this issue. Perhaps Obama and Congressional Democrats have quietly "negotiated" a path that will provide the president with political cover among liberals, while allowing him the latitude to manage the affairs of the Executive Branch, and which scores points for the lawmakers among liberal organizations. The proposed measure could potentially accomplish that balance. Because the statute makes a strong statement against the blanket assertion of the privilege, but does not disturb the typical practice of courts deferring to the president on matters of national security, both sides could come away with a "victory."

An Aside: Separation of Powers
If Obama strongly disapproves of the measure, he could veto it (in the event that Congress passes it). He could also challenge its application in court on "separation of powers" grounds. Although Congress has the authority to establish evidentiary standards for use in federal courts, this particular evidentiary privilege arises out of executive power. Obama could argue that Congress (or even the courts) lacks the power to define the boundaries around which the privilege operates. Historically, presidents have not been successful when they have made these types of arguments (e.g., Richard Nixon).

[Editor's Note: My colleague Amanda Frost has examined (and rejected) separation of powers concerns in this setting. See here.]

Related Readings on Dissenting Justice:

Rendition, Secrecy and Torture: Inseparable?

Just As I Predicted: Obama Administration Invokes State Secrets Privilege in Anti-Torture Lawsuit

Speaking of Obama, Rendition and Torture. . . .


Anonymous said...

Re separation of powers -- It seems to me that the executive must have at least some level of inherent right to keep sensitive secrets, even in the face of legislation directly to the contrary. If congress had unlimited power to force the President to reveal any and all secrets, it could leave the President practically powerless.
Mark G

Darren Lenard Hutchinson said...

Mark G - I think all sides agree that the executive has the authority to keep a lid on sensitive information. This, however, does not mean that the executive has the absolute authority (free of judicial or congressional oversight) to make that determination and to create a blanket shield on information relevant to a valid legal claim. I suspect that courts will defer to the executive on the issue, and the proposed law does not forbid this. The law, however, establishes a procedure for making this determination if a litigant seeks materials that might contain sensitive information. The Bush administration argued the executive's determination was sufficient to get rid of the litigation altogether. The proposed law would direct courts to make an item-by-item assessment (which is closer to how most privileges operate).

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